When Article 8 ECHR Fails to Protect Mothers: Family Courts in Scotland
"The emergence of a two-tier system where mothers' rights are protected south of the border but abandoned in Scotland is alarming."
Every year, approximately 52,000 separating couples in England and Wales who cannot agree on child arrangements head to family courts. In 2024 alone, around 13,000 new private law applications were made each quarter, involving over 19,000 individual children (Family Court Statistics, 2024). Parents often rely on Article 8 of the European Convention on Human Rights (ECHR) to defend their right to family life continuing with the least disruption, even through high-conflict separation.
At least, that is the principle. In practice, this is not always so: family courts are not consistent in their application of Article 8. In Scotland, the issue is even more serious: the courts seem to routinely ignore Article 8.
The ECHR is clear that a child’s best interest is at the heart of every court hearing. Article 8 entails a set of key considerations:
– The child’s right to maintain meaningful relationships with both parents
– The impact of distance, cost, language, schooling and travel
– Whether contact post-relocation will be practical, regular and emotionally sustaining, not merely theoretical
This means the authorities must take positive steps to promote contact with both parents, where appropriate.
In the 1990s, father’s rights campaigners made the case — often in eye-catching exploits, such as scaling Buckingham Palace in a Batman costume to unveil a banner championing fathers — that contact arrangements consistently favoured the mother. The campaigners held up the statistic that 89% of single parent households in the UK as evidence of gender bias in family courts; they succeeded in a rebuttal of the presumption of joint custody, enshrined in the Children and Families Act 2014.
Today, fathers’ rights are generally better protected in court. Yet, the Harm Panel Report (2020) demonstrated that this new “pro-contact culture” was harming, not helping, families — by prioritising the rights of an abuse perpetrator to contact over the safety of the other parent and child. Although the presumption has now been removed, the repercussions of this cultural shift have yet to be translated into better protections for parents.
The Scottish Exception: When Protection Fails
A recent case in Scotland, involving the forcible relocation of a child, showed the court’s failure to uphold the mother’s right to family life at both First Instance and Appeal. It took no account of Article 8’s two key questions:
– Is there an interference with family life?
– Is the interference necessary and proportionate?
As with innumerable cases in our family courts every year, the relocation in question had interfered with the child’s relationship with the left-behind parent and with that parent’s ability to maintain family life through regular, meaningful contact.
The presiding sheriff did not scrutinise any evidence, making no attempt to question the justification for the removal, or to challenge the safeguarding of the child’s and parent’s family life. Moreover, in this case, the Sheriff appeared to argue that the fact that the mother worked long hours meant that she would be a less suitable primary caregiver than the father, who worked equally long hours.
Ostensibly, the ECHR has been integrated into Scots law with the Human Rights Act 1998 and the Scotland Act 1998. Yet time and time again, anecdotally, mothers feel ill-served by the Scottish judicial system. Their right to private family life is disregarded in favour of the father’s.
Relocation cases are among the most challenging in family law. Recent case law from England shows that courts are increasingly taking a holistic approach, carefully weighing:
– The child’s wishes and feelings about the loss of contact
– The genuine nature of the application
– The status quo for contact between the child and the left-behind parent
– The practicalities of contact following relocation
However, Scottish courts appear to apply these principles inconsistently, particularly when mothers are the “left-behind” parent.
The emergence of a two-tier system where mothers’ rights are protected south of the border but abandoned in Scotland is alarming. The integration of the ECHR into domestic law was meant to ensure consistent human rights protections. Yet mothers in Scotland find themselves in a legal limbo, where Article 8 exists on paper but fails in practice.
It is time for Scottish family courts to examine their approach to relocation cases and ensure that mothers’ Article 8 rights receive the same careful consideration and protection as fathers’ rights. Otherwise, watch out for campaigners in Super Woman costumes scaling Holyrood House.
